IN THE COURT OF APPEALS OF IOWA
No. 15-0616
Filed September 28, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANTONIO RAYSHAUN EVANS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F.
Staudt (motion to suppress) and Todd A. Geer (trial), Judges.
Antonio Evans appeals the denial of his motion to suppress and
subsequent drug-related convictions. AFFIRMED.
Roger L. Sutton of Sutton Law Office, Charles City, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.
Antonio Evans was convicted of possession of cocaine with intent to
deliver, a drug tax stamp violation, and possession of marijuana. He contends
the two searches of his person followed by the detention and strip search that led
to the discovery of drugs were unconstitutional and the evidence should have
been suppressed. We conclude that only the challenge to the legality of the strip
search was preserved on appeal and find it a lawful search incident to arrest.
Therefore, we affirm the district court’s denial of Evans’ motion to suppress.
I. Background Facts and Proceedings.
On July 28, 2014, Antonio Evans was a passenger in a vehicle pulled over
by Officers Nissen and Sullivan. Officer Nissen recognized the vehicle’s
occupants and knew the driver, Chantelle Bentley, had a revoked license. Also,
while off duty two days prior, Officer Nissen had observed Evans driving—
knowing Evans was without a valid license—and reported the incident to police
dispatch at that time.
Bentley and Evans’ vehicle pulled over twenty seconds after the officers,
in an unmarked car, activated their lights and initiated the traffic stop. Officer
Sullivan approached the vehicle on the driver’s side to talk with Bentley, and
Officer Nissen approached Evans on the passenger’s side. Officer Nissen
immediately noticed the odor of burnt marijuana and Evans’ watery, glassy eyes.
Officer Nissen asked Evans about the smell, and Evans admitted to smoking
marijuana earlier in the evening.
Based on the marijuana smell and Evans’ comments, Officer Nissen had
Evans exit the vehicle to perform a search of Evans’ person. Another officer
3
searched the vehicle and found no drugs or drug paraphernalia. During this first
pat-down of Evans, Officer Nissen found nearly $700. Officer Nissen also
noticed the strong smell of fresh marijuana emanating from below Evans’
waistline and that Evans clenched his buttocks during part of the pat-down
search. Another officer on the scene described the search:
It was—like he [Officer Nissen] was wafting the waistline of his
[Evans] pants, pulling them up and down. . . . As Officer Nissen
was messing with the pants of Mr. Evans, I detected a very strong
odor of unsmoked, raw marijuana coming from the waistline of Mr.
Evans.
Because of the smell and Evans’ behavior, Officer Nissen believed Evans had
marijuana hidden in his buttocks or crotch region and performed another pat-
down search. Still no drugs were found. At some point, Evans was handcuffed
and read his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-45
(1966).
Officer Nissen placed Evans, still handcuffed, in the back of the police car
and sat next to him on the ride back to the police station. Officer Nissen testified
that he told Evans he was being detained but “was not under arrest.” Instead, he
“detained” Evans in order to go “down to the station for a strip-search.” At the
station, Officer Nissen asked permission to conduct a strip search of Evans and a
superior officer granted authorization. When Evans was asked to remove his
underwear, he told the officer, “You got me.” The search within Evans’ buttocks
area revealed a plastic bag containing crack cocaine and marijuana.
Evans was charged with possession of cocaine with intent to deliver, in
violation of Iowa Code section 124.401(1)(c) (2013); failure to affix a drug tax
4
stamp, in violation of section 453B.12; and possession of marijuana, in violation
of section 124.401(5).
Evans filed a motion to suppress, which was denied after a hearing. The
court found Officer Nissen had probable cause to place Evans under arrest prior
to the strip search.
Evans’ case proceeded to a jury trial. He was found guilty as charged and
was sentenced to a term of incarceration not to exceed thirty-one years.
On appeal, Evans asserts the traffic stop and searches of his person were
unconstitutional. He claims that any evidence resulting from the stop and
searches was illegally obtained because there was no search warrant or arrest
and no probable cause or exigent circumstances to justify a warrantless search.
II. Scope of Review.
Because Evans’ challenge implicates his rights under the Fourth
Amendment to the United States Constitution and article I, section 8 of the Iowa
Constitution, our review is de novo. State v. Heminover, 619 N.W.2d 353, 356
(Iowa 2000).
This review requires us to independently evaluate the totality of the
circumstances shown by the record. State v. Lowe, 812 N.W.2d 554, 566
(2012). Here, we consider both the evidence at the suppression hearing and the
evidence at trial. See State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). “We are
not bound by the district court’s determinations, but we may give deference to its
credibility findings.” State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).
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III. Error Preservation.
The State argues Evans failed to preserve his challenge to the traffic stop
and on-scene searches of Evans’ person. We agree Evans’ challenges to the
“stop” and “double search” were not preserved for appeal. While these issues
were raised before the district court, the court did not rule on these issues. Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.” (emphasis added)); see also
Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (explaining error
preservation allows the district court to avoid or correct an error and provides this
court with an adequate record to review the errors purportedly committed); State
v. Pickett, 671 N.W.2d 866, 869 (Iowa 2003). Evans did not seek an expanded
ruling to address the legality of the stop and on-scene searches. See Meier, 641
N.W.2d at 537-38. Therefore, the challenges to the stop and on-scene searches
are waived. See Pickett, 671 N.W.2d at 869 (“[I]t is unfair to allow a party to
choose to remain silent in the trial court in the face of error, taking a chance on a
favorable outcome, and subsequently assert error on appeal if the outcome in the
trial court is unfavorable.” (citation omitted)).
Consequently, our review is confined to the legality of the strip search
subsequent to Evans’ detention.
The State also argues Evans failed to preserve his challenge to the strip
search under article I, section 8 of the Iowa Constitution because he failed to cite
the specific provision and the district court did not rule on it. We find this
unpersuasive. “When there are parallel constitutional provisions in the federal
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and state constitutions and a party does not indicate the specific constitutional
basis, we regard both federal and state constitutional claims as preserved.” King
v. State, 797 N.W.2d 565, 571 (Iowa 2011) (citations omitted). Because the
district court’s ruling, though sparse, indicates the court considered and ruled on
the constitutional claim, we conclude Evans preserved his challenge under the
Iowa Constitution. See id.
IV. Discussion.
The issue before this court is whether the strip search of Evans violated
his constitutional right to be free from unreasonable searches and seizures. See
U.S. Const. amend. IV; Iowa Const. art. I, § 8. Evans does not challenge the
manner of the strip search but rather whether an exception to the warrant
requirement existed. The search and seizure clause of the Iowa Constitution and
the language of the Fourth Amendment are nearly identical, so cases interpreting
the Fourth Amendment are persuasive on interpretations of the Iowa
Constitution. State v. Hoskins, 711 N.W.2d 720, 725 (Iowa 2006).
Any search conducted without a valid search warrant is per se
unreasonable unless an established exception to the warrant requirement exists.
State v. McGrane, 733 N.W.2d 671, 676 (Iowa 2007). Exceptions include: (1) a
consent search; (2) a search based on probable cause and exigent
circumstances; (3) a search of items in plain view; and (4) a search incident to a
lawful arrest. Naujoks, 637 N.W.2d at 107. The State must prove by a
preponderance of the evidence whether an exception applies. Id. Any evidence
obtained that violates the federal or state constitutional provisions against
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unreasonable searches and seizures is inadmissible. State v. Christopher, 757
N.W.2d 247, 249 (Iowa 2008).
Search Incident to Arrest. Here, the State claims the search at the police
department was a lawful search incident to arrest in order to preserve evidence. 1
The search-incident-to-arrest exception to the warrant requirement allows a
police officer “to search a lawfully arrested individual’s person.” United States v.
O’Connell, 408 F. Supp. 2d 712, 723 (N.D. Iowa 2005). Evans contends the
search-incident-to-arrest exception is inapplicable because he was detained, not
arrested.
Our legislature has defined arrest as “the taking of a person into custody
when and in the manner authorized by law, including restraint of the person or
the person’s submission to custody.” Iowa Code § 804.5. The manner of arrest
requires,
A person making an arrest must inform the person to be
arrested of the intention to arrest the person, the reason for arrest,
and that the person making the arrest is a peace officer, if such be
the case, and require the person being arrested to submit to the
person’s custody, except when the person to be arrested is actually
engaged in the commission of or attempt to commit an offense, or
escapes, so that there is no time or opportunity to do so.
Id. § 804.14.
When an officer exceeds the scope of an investigatory stop, the detention
may transform the initial stop into an arrest. State v. Bradford, 620 N.W.2d 503,
506 (Iowa 2000); see Centanni v. Eight Unknown Officers, 15 F.3d 587, 590-91
1
Alternatively, the State defends the search on grounds that it was based upon probable
cause and exigent circumstances. This exception to the warrant requirement is not
applicable due to our finding that a valid arrest took place.
8
(6th Cir. 1994); see also Peterson v. City of Plymouth, 945 F.2d 1416, 1419 (8th
Cir. 1991).
[I]t is clear that the line between an investigatory detention and an
arrest is crossed “when the police, without probable cause or a
warrant, forcibly remove a person from his home or other place in
which he is entitled to be and transport him to the police station,
where he is detained, although briefly, for investigative purposes.”
Centanni, 15 F.3d at 590 (citation omitted).
Our supreme court recently reviewed when an arrest has occurred for
purposes of our speedy indictment and speedy trial rules in State v. Wing, 791
N.W.2d 243, 247-49 (Iowa 2010). A vigorous dissent was filed in Wing, but it
primarily related to the application of the speedy trial requirement to de facto
arrests. See 791 N.W.2d at 254-56 (Cady, C.J., dissenting). The court in Wing
concluded the notice provision in Iowa Code section 804.14 was significant
unless the situation “is obvious to the arrestee that he or she is being arrested.”
Id. at 249. The court stated,
When an arresting officer does not follow the protocol for arrest
outlined in section 804.14 and does not provide any explicit
statements indicating that he or she is or is not attempting to effect
an arrest, we think the soundest approach is to determine whether
a reasonable person in the defendant’s position would have
believed an arrest occurred, including whether the arresting officer
manifested a purpose to arrest. Viewing the events surrounding an
alleged arrest from this perspective is consistent with the way
courts analyze whether a person has been seized for Fourth
Amendment purposes.
Id.
We acknowledge Evans was detained by the police without a warrant,
removed from a place in which he was entitled to be, and transported to a police
station for investigative purposes. The officers exceeded the bounds of the
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investigatory stop, but Officer Nissen specifically informed Evans that he was
being detained for a strip search and in fact was not under arrest.
Prior to Wing we would have concluded Officer Nissen’s statement to
Evans was not determinative. See State v. Turner, 630 N.W.2d 601, 607 (Iowa
2001). Rather, we would employ an objective test to determine whether a
reasonable person in the subject’s position would have believed an arrest
occurred. Id. However, we interpret Wing to forego any objective test of what a
reasonable person might believe—if the officer has specifically announced his or
her intentions in respect to arrest. And here, there is no dispute the officer
informed Evans he was only being detained, not arrested.
We acknowledge there is contrary authority concluding an officer’s
statement at the scene does not change the objective analysis of the situation.
For example, in United States v. Jackson, 377 F.3d 715, 717 (7th Cir. 2004), the
court noted:
Sapetti told him—even while slapping on the handcuffs—that he
was not “under arrest” but was just being “detained” while more
identity checking occurred. The officer’s language does not change
the facts, however: there was probable cause to believe that
Jackson had committed a crime, and he was (reasonably) taken
into custody. It does not matter for current purposes what label the
officer applied at the scene; analysis under the Fourth Amendment
is objective . . . .
But even if we have misconstrued the holding in Wing and must apply an
objective analysis, we are not convinced the detention has been transformed into
an arrest. We agree some of the facts strongly support a de facto arrest: Evans
was handcuffed, read his Miranda warnings, placed in the back of a police
vehicle, and taken to the police department. But no controlled substances were
10
found during the searches of the vehicle or individuals, nor any crime other than
a traffic offense investigated or discussed. We do not believe a reasonable
person in Evans’ position would have believed the police restraint on his freedom
amounted to an arrest when he was specifically informed he was not under arrest
but rather being detained for a strip search and, at that point, no controlled
substances had been found.
Probable Cause. The warrant exception of a search incident to an arrest
does not require that the arrest precede the search “if it is substantially
contemporaneous with it, provided probable cause for the arrest existed at the
time of the search.” State v. Peterson, 515 N.W.2d 23, 25 (Iowa 1994) (“Where
[a] formal arrest followed quickly on the heels of the challenged search of
petitioner’s person, we do not believe it particularly important that the search
preceded the arrest rather than vice versa.” (citation omitted)). Accordingly, we
must determine if there was probable cause to arrest Evans at the time of the
search and if his arrest was contemporaneous with the search.
We first address the question whether probable cause existed to arrest
because a search incident to arrest is only valid if there was a lawful arrest. An
officer may make a warrantless arrest when there is a reasonable belief that an
indictable public offense has been committed and a reasonable ground for
believing the person to be arrested has committed it. Iowa Code § 804.7(3);
State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005). All of the evidence
available to the police officer may be considered even though each factor might
not support probable cause by itself. State v. Ceron, 573 N.W.2d 587, 592 (Iowa
1997).
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We find substantial evidence to support a finding of probable cause for
arrest. Although the Iowa Supreme Court has not addressed such an issue, in
United States v. Perdoma, 621 F.3d 745, 749 (8th Cir. 2010), the court found an
officer had probable cause to arrest a suspect for marijuana possession when an
odor of marijuana was determined to emanate from the specific person. In
Perdoma, 621 F.3d at 749, the court cited with approval United States v.
Humphries, 372 F.3d 653, 659 (4th Cir. 2004), reaching the same conclusion. In
Humphries, the court stated,
While the odor of marijuana provides probable cause to
believe that marijuana is present, the presence of marijuana does
not of itself authorize the police either to search any place or to
arrest any person in the vicinity. Additional factors must be present
to localize the presence of marijuana such that its placement will
justify either the search or the arrest. In the case of a search, when
the odor emanates from a confined location such as an automobile
or an apartment, we have held that officers may draw the
conclusion that marijuana is present in the automobile or the
apartment. But probable cause to believe that marijuana is located
in an automobile or an apartment may not automatically constitute
probable cause to arrest all persons in the automobile or
apartment; some additional factors would generally have to be
present, indicating to the officer that those persons possessed the
contraband. See [Maryland v.] Pringle, 124 S. Ct. [795,] 800–01
[(2003)] (holding that the presence of cocaine and a roll of money in
the passenger area of an automobile gave officers probable cause
to believe that the automobile’s occupants jointly committed the
crime of possession of cocaine). Thus, if an officer smells the odor
of marijuana in circumstances where the officer can localize its
source to a person, the officer has probable cause to believe that
the person has committed or is committing the crime of possession
of marijuana.
372 F.3d at 659 (citation omitted).
In this case, Officer Nissen localized the source of the marijuana smell to
emanate to a specific person, Evans. In trial testimony, Officer Nissen was
asked: “[W]hat would you describe as far as the level of the smell of marijuana
12
that was coming from the defendant at that point? In what area of the defendant
was it coming from?” He responded, “It was inside the underwear of the
defendant. While I searched his waistband the odor was intense to the point that
I was 100 percent sure that he had marijuana down his pants.” The smell of
burnt marijuana on Evans’ person, the scent of fresh marijuana coming from
Evans’ undergarments, Evans’ statement he had smoked marijuana recently,
and Evans’ behavior throughout the initial searches were sufficient to support
probable cause for arrest. Probable cause need not rise to the level of proof
required for conviction. State v. Horton, 625 N.W.2d 362, 365 (Iowa 2001).
In respect to the second requirement—whether the arrest was
contemporaneous with the search—after the marijuana and cocaine were found
during the strip search, Evans was then informed by Officer Sullivan that he was
being charged with possession with intent in respect to the cocaine, a drug tax
stamp violation, and possession of marijuana. We conclude the arrest was
contemporaneous with the search.
Because Officer Nissen arrested Evans and had probable cause for the
arrest, the strip search performed after transportation to the police station was
justified under the search-incident-to-arrest exception to the general warrant
requirement rule. See Iowa Code § 804.30; State v. Gaskins, 866 N.W.2d 1, 15
(Iowa 2015) (noting that a search incident to arrest remains a valid exception to
article I, section 8 of the Iowa Constitution “when the arrested person is within
reach of contraband and thus able to attempt to destroy or conceal it”); see also
Bradford, 620 N.W.2d at 507.
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Accordingly, we affirm the district court’s denial of Evans’ motion to
suppress on grounds the strip search was a lawful search incident to arrest.
AFFIRMED.
Vaitheswaran, J., concurs; Tabor, J., dissents.
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TABOR, Judge. (dissenting)
I respectfully dissent. It is our job to “scrutinize closely those searches
incident to arrest which involve inspections of or intrusions into the body.”
See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment § 5.3(c), at 216 (5th ed. 2012). The majority relies on the search-
incident-to-arrest exception to the warrant requirement to uphold the district
court’s denial of the motion to suppress. Because the officer assured Evans he
was not under arrest, I do not believe the State may now rely on that exception to
justify the strip search conducted after transporting Evans to the police station.
Three Waterloo police cars arrived at the traffic stop of the Lexus SUV
driven by Chantelle Bentley in the early morning hours of July 28, 2014. Evans
was a passenger. Officer Mark Nissen testified they stopped Bentley because
her license was revoked and because Officer Nissen had seen Evans, who also
lacked a valid license, driving the vehicle the day before. After smelling burnt
marijuana coming from the SUV, Officer Nissen “removed Evans from the
vehicle, conducted a search of his person,” and “[w]hile searching him located a
large sum of money.” Officer Nissen testified that while searching Evans “around
his waistband area, [he] detected a very strong odor of fresh marijuana.” Officer
Nissen further testified: “Evans began to flex his buttocks while searching him on
the scene, which furthered my concerns that he had something in his pants.”
As an initial matter, the majority uses the term “pat-down” to describe the
roadside searches of Evans. But the record shows Officer Nissen conducted at
least one full search of Evans, not just a pat-down. A pat-down is justified for
officer safety if a suspect is considered armed and dangerous. Terry v. Ohio,
15
392 U.S. 1, 24 (1968); see also Sibron v. New York, 392 U.S. 40, 64 (1968).
During a pat-down, an officer may only seize contraband if its incriminating
nature is immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 376
(1993).
Officer Nissen did not testify he considered Evans to be armed and
dangerous, but rather, he believed Evans possessed marijuana, initially based on
the smell of burnt marijuana coming from the car and his person and then from
what the officer described as the smell of fresh marijuana coming from Evans’s
underwear. The marijuana odors and Evans’s behavior during the search of his
person prompted the officer to place Evans, who was already in handcuffs, in the
back of the patrol car for a ride to the station.
Because the district court’s ruling on the motion to suppress did not
separately address the legality of the roadside searches, the majority holds
Evans failed to preserve error on his challenge to them. While it is true Evans
did not obtain a suppression ruling addressing those searches, the court cited his
suspicious conduct during those searches (i.e., “flexing his buttocks”) as a
contributing factor in deciding probable cause existed to place Evans under
arrest even before finding any drugs. Accordingly, we need to examine the
propriety of those police interactions as part of our determination if the
warrantless strip search was justified as a search incident to arrest.
Officer Nissen testified he believed he had probable cause to arrest Evans
for possession of marijuana: “I was 100 percent certain it was in his pants.” 2 But
2
When Officer Thomas Frein took the stand at the suppression hearing, he was less
sure there was probable cause to arrest Evans for possession of marijuana before he
16
nevertheless Officer Nissen told Evans he was not under arrest but was merely
being “detained.” Officer Nissen testified: “It was at that point when I Mirandized
him that I was trying to talk to him to further the investigation or try to have some
kind of admission or statement from him.” During the ride in the backseat of the
squad car, the officer told Evans: “I’m giving you the opportunity to tell me about
what’s down there. I know you at least have some high-grade marijuana down
your pants.”
It is troubling the officer would purposefully advise a suspect he was not
under arrest in the hopes of obtaining admissions uninhibited by protections
against self-incrimination afforded arrestees but later justify conducting a strip
search of the suspect under the exception for searches incident to arrest. In my
view, the State should not be able to have it both ways: claiming not to be
making an arrest for purposes of the Fifth Amendment while at the same time
claiming the suspect was “arrestable” for purposes of invoking the search-
incident-to-arrest exception to the warrant requirement of the Fourth Amendment.
For police to search incident to arrest, it is not enough that the suspect is
“arrestable.” See Knowles v. Iowa, 525 U.S. 113, 118–19 (1998) (reaffirming the
“bright-line rule” of United States v. Robinson, 414 U.S. 218, 235 (1973), that
“authority to conduct a full field search as incident to an arrest” depends on a
custodial arrest rather than issuance of a citation in lieu of arrest); see also Cupp
v. Murphy, 412 U.S. 291, 296 (1973) (upholding a limited search under suspect’s
was transported to the station, saying: “That’s a tough question to answer. Believing
that the marijuana was there without having retrieved it, I’d say there was enough—a
reasonable suspicion to say there was marijuana in his underwear” but not probable
cause.
17
fingernails as part of detention, but cautioning a full search under Chimel v.
California, 395 U.S. 752, 763 (1969), would not have been justified without a
formal arrest and without a warrant). The search-incident-to-arrest exception is
viable only when the suspect has actually been arrested. Otherwise the ground
for searching could be renamed the “search-incident-to-probable-cause-to-arrest
exception.” See Butler v. United States, 102 A.3d 736, 746 (D.C. Ct. App. 2014)
(Beckwith, J., dissenting); see also State v. Lee, ___ S.W.3d ___, ___, 2016 WL
2338427, at *7 (Mo. Ct. App. May 3, 2016) (agreeing with Butler dissent and
holding warrantless search incident to arrest is not authorized when officers
express no intention to arrest suspect). “To adopt the proposition that the search
was valid because there was probable cause to arrest puts the cart before the
horse.” People v. Evans, 371 N.E.2d 528, 531 (N.Y. 1977). An actual arrest is
an essential requisite to a search incident to arrest. Id.
I recognize a valid search incident to arrest may precede the actual arrest;
a search is reasonable if it is “substantially contemporaneous” with the arrest.
See Rawlings v. Kentucky, 448 U.S. 98, 111 (1980). But the fruits of the search
must not be necessary to support probable cause for the arrest. See id. at 111
n.6. Here, the majority decides Evans’s arrest was “contemporaneous with the
search” because the police placed him under arrest after seizing the baggies of
marijuana and cocaine from his underwear during the strip search. The lingering
question is whether the police had probable cause to arrest Evans for possession
of marijuana before they confirmed he did possess marijuana.
The majority cites State v. Peterson for the proposition that “[w]here [a]
formal arrest followed quickly on the heels of the challenged search” it was not
18
“particularly important that the search preceded the arrest rather than vice versa.”
See 515 N.W.2d 23, 25 (Iowa 1994) (alterations in original) (quoting Rawlings,
448 U.S. at 111). But in Peterson, the court determined the defendant was under
arrest for failure to have a driver’s license, not for possession of the cocaine he
was in the process of swallowing when police searched his mouth. See id. at 24.
Here, Officer Nissen testified he did not arrest Evans on the night in question for
failure to have a driver’s license the previous day. So the only offense for which
the officers were arguably arresting Evans was possession of the raw marijuana
that Officer Nissen believed he smelled around Evans’s waistband. And Officer
Nissen affirmatively stated he had not arrested Evans for that offense during the
transportation to the station. The fact Officer Nissen made a deliberate choice
not to arrest Evans until after the strip search prevents justifying the strip search
as incident to arrest. See Evans, 371 N.E.2d at 531 (“The State cannot have it
both ways, they must choose. Here the police made a deliberate choice that the
[undercover status of the buyer] was more important than the immediate arrest of
the defendant and they must be bound by that choice.”).
The majority also relies on two federal circuit cases—United States v.
Perdoma, 621 F.3d 745, 749 (8th Cir. 2010), and United States v. Humphries,
372 F.3d 653, 659–60 (4th Cir. 2004)—for the proposition that the odor of
marijuana, the source of which can be traced to a particular person, provides
probable cause for arresting that person for drug possession. This proposition
has not yet been accepted by our supreme court. Our supreme court has held a
trained officer’s detection of a sufficiently distinctive odor, by itself or when
accompanied by other facts, may establish probable cause for a search. See
19
State v. Watts, 801 N.W.2d 845, 854 (Iowa 2011). But “the inquiries about
whether the facts justify a search are different from whether they justify a
seizure.” See Humphries, 372 F.3d at 659.
Regardless of how our supreme court would decide this question, in the
case before us, the Waterloo officers conducted the strip search as an
investigatory tool to confirm their suspicion Evans possessed marijuana and not
as an inspection of his person incident to placing him under arrest for possession
of marijuana. The State’s revisionist treatment of the investigatory strip search
as a search incident to arrest does not fit with the historical purposes of this
warrant exception, namely to remove any weapons from the arrested person or
to seize any evidence on the arrested person to prevent its concealment or
destruction. See Robinson, 414 U.S. at 235. The search could not be justified
for officer safety because Evans was already handcuffed and transported to the
station before the strip search. And the only evidence the officers sought to
preserve was the drug evidence necessary to support probable cause for the
arrest.
Finally, the State raises an alternative argument that the strip search was
justified on the existence of probable cause plus exigent circumstances. But the
State does not delineate what exigent circumstances existed after the officers
transported Evans to the police station that would have prevented them from
obtaining a search warrant.
Accordingly, I would reverse the district court’s denial of the motion to
suppress.